Bombay High Court slams trial court for giving light sentence to offender under POCSO Act

The Bombay High Court last week criticised the manner in which a special judge imposed only a 3-year jail sentence on a man convicted for attempting to rape a child, particularly when the Protection of Children from Sexual Offences Act (POCSO Act) called for a stricter penalty. [Rodu Bhaga Wagh v. State of Maharashtra & Anr.].The case led Justice Bharati Dangre to take critical note of how the judges as well as special prosecutors appointed under the POCSO Act often commit gross errors leading to miscarriage of justice."The State and the Special Public Prosecutor continue to act mute spectators to the flawed implementation of the legislation, which is specifically intended to protect the children from commission of serious offences of sexual assault, which are considered to be heinous in nature and a need was felt for the special statute, as the provisions in the IPC were found to be inadequate to tackle this menace," the High Court said. .It, therefore, directed the principal secretary of the State's law and judiciary department to state on affidavit what steps should be taken if prosecutors do not notice gross errors in implementing the POCSO Act.“The affidavit shall also specifically state what the State Department intends to do, once this glaring aspect is brought to its notice. The public prosecutor (of the High Court) shall place the necessary material before the Principal Secretary, Law and Judiciary Department, who shall file his affidavit within a period of two weeks from today,” the Court ordered..The Court also directed the principal secretary to suggest a mechanism to create awareness about the POCSO Act, considering that even the investigating agency had failed to invoke the correct provisions in the present case. .The convict in the present case was a 64-year-old man, who was found guilty of having attempted to rape a 10-year-old. The trial court had imposed a 3-year rigorous imprisonment sentence by invoking Section 18 of the POCSO Act (attempt to commit offence) read with Sections 4 and 6 (which deal with sexual assault and penetrative sexual assault)..Section 18 says that for attempts to commit an offence, the punishment imposed can be half of the punishment of imprisonment for life or one half of the longest sentence prescribed for the main offence.While so, the High Court was perplexed about why the trial court judge only imposed a 3 year sentence, when the punishments for the main offences under Sections 4 and 6 were 7 years and 10 years respectively, at minimum, and life imprisonment at most. .“It is not open to a court to impose a punishment lesser than the minimum that is prescribed and the only discretion vest is between the lesser punishment and the maximum punishment. If Section 18 contemplates imprisonment for life, as the longest punishment, then in no case, the punishment could have been restricted to 3 years of rigorous imprisonment” the High Court observed. .The Court proceeded to question what steps could be taken against prosecutors and judges for failing to notice such the errors while implementing the POCSO Act..“Not only the judges but even the special prosecutors are expected to be cognizant of the provisions of the POCSO Act and the question that arises is, in such a case of miscarriage of justice, who is to be blamed?” the High Court lamented..The Court indicated that it would pass appropriate directions to fix more accountability on POCSO judges, once it receives the affidavit from the State government on this issue. .Advocate Samay Pawar along with advocate Ramnik P Pawar appeared for the appellant (accused) in this case. Additional Public Prosecutor YM Nakhwa, APP represented the State.Advocate Abbas Z Mookhtiar represented the complainant. .[Read order]